Kaylee Tillett

Prior to 2008, gun-rights advocates referred to the Second Amendment as a “second-class right” with courts relying on a militia-centric interpretation articulated by the Supreme Court of the United States in United States v. Miller.[1] Nearly seventy years after Miller, the Supreme Court radically changed its interpretation of the Second Amendment in District of Columbia v. Heller.[2] In Heller, the right to keep and bear arms in one’s home for purposes of self-defense became the core of the Second Amendment, with the Supreme Court applying this right to the states two years later in McDonald v. City of Chicago.[3] Finally, last year, in New York State Rifle & Pistol Ass’n v. Bruen, the Supreme Court expanded the Second Amendment’s reach post-Heller and McDonald, holding “that the Second and Fourteenth Amendments protect an individual’s right to carry a handgun for self-defense outside the home.”[4]

Bruen significantly altered the landscape of the Second Amendment, not only by expanding the reach of the right to keep and bear arms beyond the home, but also by rejecting the legal standard previously used to decide Second Amendment cases.[5] Under Bruen, the new two-step analysis for Second Amendment cases begins with a presumption that if the plain text of the Second Amendment includes an individual’s conduct, then the Constitution protects that conduct.[6] Then, the government bears the burden of justifying its proposed regulation “by demonstrating that it is consistent with the Nation’s historical tradition of firearm regulation.”[7] When deciding Bruen, the Supreme Court focused its “historical analysis” on the firearm regulatory practices of the Founders in 1791 and the Reconstruction generation in 1868 because these are the relevant time periods when the Second and Fourteenth Amendments were written.[8] Specifically, the Supreme Court determined that the firearm regulations of the Twentieth Century put forth by the respondents were simply too recent to constitute a historical tradition and rejected this evidence, relying instead on the common understanding of firearms regulation at the time of the Founding and Reconstruction.[9]

One year post-Bruen, the landscape of the Second Amendment is primed for a novel legal issue that the Supreme Court evaded in Heller, McDonald, and Bruen, continuously passing the ball through dicta and concurrences—the right to keep and bear arms as applied to felons.[10] Born out of a series of high profile assassinations, the federal government’s regulation of a felon’s ability to possess firearms began as recently as the Gun Control Act of 1968, which was expanded by the Brady Handgun Violence Prevention Act of 1994, also known as the “Brady Bill.”[11] Today, a provision of the Brady Bill, 18 U.S.C. § 922(g)(1), makes it “unlawful for any person . . . who has been convicted in any court, of a crime punishable by imprisonment for a term exceeding one year . . . [to] possess in or affecting commerce, any firearm or ammunition.”[12] Federal courts are split on the validity of § 922(g)(1) after defendants began arguing that federal “felon-in-possession” laws violate the Second Amendment under Bruen.[13]

On June 6, 2023, the Third Circuit en banc determined that § 922(g)(1) violated the Second Amendment as applied to a non-violent offender.[14] Yet just four days prior, the Eighth Circuit ruled in the opposite, finding no constitutional violation.[15] Both Circuits relied on the two-step “historical foundations” analysis created in Bruen, yielding extensively disparate outcomes.[16] Prior to Bruen, in Heller, the Supreme Court explicitly included dicta deferring the analysis of whether the Second Amendment applied to felons.[17] In Bruen, the majority opinion did not address the issue at all.[18] In fact, the concurrences and the dissent in Bruen explain that the majority opinion need not include an analysis of federal “felon-in-possession” laws because they are “presumptively lawful.”[19]

On the contrary, government regulations prohibiting felons from possessing firearms are as recent as the historical evidence put forth by the respondents in Bruen, which the Supreme Court deemed too modern for “consisten[cy] with this Nation’s historical tradition of firearm regulation.”[20] As discussed above, the federal government only began regulating the firearm possession of felons in 1968—decades before the Reconstruction generation and more than a century after the Founding.[21] Further, the “historical tradition” that courts, such as the Eighth Circuit, are beginning to rely on to deny felons their Second Amendment rights is disturbing, including historical regulations that categorically exclude Black and Native Americans, as well as certain religious minorities, from possessing firearms.[22] Specifically, the Eighth Circuit recognized that regulations barring certain races from the right to keep and bear arms “would be impermissible today under other constitutional provisions,” yet included these regulations in its historical tradition analysis regardless.[23] Even the language of “law-abiding” citizen used throughout Bruen is ambiguous, as the sheer breadth and scope of what constitutes a “felony” has dramatically changed since the time of the Founding.[24]

As the number of Bruen challenges grow, it is time for the Supreme Court to define explicitly whether the Second Amendment extends to felons; however, this issue illuminates a Pandora’s box of sub-issues, including, but not limited to, (1) the differences between violent and non-violent felonies, (2) the disconnect between a state felony and a federal felony, (3) the length of time between the original felony conviction and the § 922(g)(1) charge, (4) the amount of time actually served in a jail or prison compared to a purely probationary sentence, and (5) the record of the particular felon.[25] The Supreme Court’s staunch devotion to originalism and the dead-hands of the Founders has brought the Supreme Court to a precipice.[26] Either the Second Amendment is an unmitigated right provided to all Americans based entirely on the historical traditions of the Nation, or it is not.

[1] United States v. Miller, 307 U.S. 174, 178 (1939).

[2] District of Columbia v. Heller, 554 U.S. 570, 577–78 (2008).

[3] Heller, 554 U.S. at 577–78; McDonald v. City of Chicago, 561 U.S. 742, 748 (2010).

[4] New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 142 S. Ct. 2111, 2122 (2022) (emphasis added).

[5] Id. at 2125.

[6] Id. at 2129–30.

[7] Id. at 2129–30.

[8] Id. at 2132.

[9] Id. at 2138 (“[A]part from a handful of late-19th-century jurisdictions, the historical record compiled by respondents does not demonstrate a tradition of broadly prohibiting the public carry of commonly used firearms for self-defense.”).

[10] Range v. Att’y Gen. of the United States, 69 F.4th 96, 98 (3d Cir. 2023).

[11] Gun Control Act of 1968, Pub. L. No. 90-618, 82 Stat. 1213; Brady Handgun Violence Prevention Act, Pub. L. No. 103-159, 107 Stat. 1536 (later codified as amended at 18 U.S.C. § 922).

[12] The federal definition of a “felon” is broader than many state definitions, applying where the potential sentence is more than two years for misdemeanors and more than one year for felonies. 18 U.S.C. § 922(g)(1); 18 U.S.C. § 921(a)(20)(B).

[13] Albert W. Alschuler, Do Convicted Felons Have a Constitutional Right to Bear Arms?, Verdict Justia (June 21, 2023), https://verdict.justia.com/2023/06/21/do-convicted-felons-have-a-constitutional-right-to-bear-arms.

[14] Bryan Range pleaded guilty in 1995 to making a false statement to obtain food stamps, violating Pennsylvania law. Range, 69 F.4th at 98. Range was sentenced to three years’ probation, although his misdemeanor carried a maximum sentence of five years’ imprisonment. Id. Range sought to purchase a firearm for hunting and for self-defense in the home. Id.

[15] Edell Jackson had two convictions for sale of a controlled substance in the second degree from 2011 and 2012. United States v. Jackson, 69 F.4th 495, 501 (8th Cir. 2023). Jackson received a 78-month sentence  for the first conviction and a 144-month sentence for the second conviction. Id. Interestingly, the Eighth Circuit cited approvingly the paneled Third Circuit’s previous decision in Range that the above-referenced en banc Third Circuit overruled. Id.

[16] Alschuler, supra note 13; see also Zak Goldstein, Federal Third Circuit Finds Felon in Possession of Firearm Laws Unconstitutional as Applied to Old, Non-Violent Offenses, Goldstein Mehta, LLC, Blog (June 7, 2023), https://goldsteinmehta.com/blog/federal-third-circuit-finds-felon-in-possession-of-firearm-laws-unconstitutional-as-applied-to-old-non-violent-offenses#.

[17] Heller, 554 U.S. at 626.

[18] Bruen, 142 S. Ct. at 2111.

[19] Id. at 2163.

[20] Michael Luo, Felons Finding It Easy to Regain Gun Rights, New York Times (Nov. 13, 2011), https://www.nytimes.com/2011/11/14/us/felons-finding-it-easy-to-regain-gun-rights.html; United States v. Bullock, No. 3:18-CR-165-CWR-FKB, 2023 WL 4232309 (S.D. Miss. June 28, 2023) (order dismissing case).

[21] Gun Control Act of 1968, Pub. L. No. 90-618, 82 Stat. 1213.

[22] Jackson, 69 F.4th at 501.

[23] Id.

[24] Alec C. Ewald, “Civil Death”: The Ideological Paradox of Criminal Disenfranchisement Law in the U.S., 2002 Wis. L. Rev. 1045, 1060 (2002).

[25] Bullock, 2023 WL 4232309, at *71–75; see also Brian Doherty, Another Judge Chips Away at Laws Barring Felons From Owning Guns, Reason (June 29, 2023, 11:15 AM), https://reason.com/2023/06/29/another-judge-chips-away-at-laws-barring-felons-from-owning-guns/.

[26] Bullock, 2023 WL 4232309, at *71–75.

By: Charlie Ellis

Forgiveness seems to be an obsolete virtue in modern American society.  With the rise of cancel-culture on social media[1] and a country with polarization metrics higher than any point in the last twenty years,[2] “forgiveness” and “civility” are merely buzzwords for two sides who only wish to point out flaws in their opponent.  In the midst of a growing national divide, North Carolina’s legislature passed Senate Bill 562 (“the Act”) in an attempt to help individuals with a past criminal record secure civil rights.  The Act significantly expands expungement opportunities for these citizens and shines as a beacon of bipartisan hope and forgiveness in the dark world of American politics.[3]  One of the Act’s most significant aspects is a new avenue for expungement beneficiaries to access one of America’s most fundamental rights: the right to bear arms.

North Carolina’s Department of Public Safety (“NCDPS”) describes their mission as “the administration of a fair and humane system which provides reasonable opportunities for adjudicated offenders to develop progressively responsible behavior”[4] and to provide “opportunities for offenders to become productive citizens.”[5]  One significant characteristic of becoming a “productive citizen” is access to the essential rights provided to all Americans within the Constitution.  North Carolina allows adjudicated offenders access to the majority of fundamental rights, such as voting, immediately upon completion of a sentence.[6]  However, public policy considerations led North Carolina’s legislature to infringe on the essential right of self-protection by forcing non-violent offenders to wait twenty years for restoration of their firearm rights.[7]  Although the Act does not specifically address gun rights, access to an expungement at an earlier date provides these same non-violent offenders with the ability to obtain firearms before the previously required twenty year mark.[8]

The only other avenue to firearm restoration available under North Carolina law is to apply for an expungement.[9]  An expungement completely wipes a conviction off of the offender’s record and allows the individual to live their life as if the offense never occurred.[10]  Before the Act, an applicant could expunge a non-violent misdemeanor or felony but had to certify that “other than the conviction(s) listed above, I have not been convicted of any felony or misdemeanor.”[11]  Basically, the expungement was limited only to the single charge and was severely restricted in the scope of its application.[12]  Problems continually arose for individuals seeking expungements that had a prior adjudication to the charge they wished to expunge.  For firearm rights, this precluded some non-violent offenders from a full restoration for far too long.  G.S. 14–415.4 requires a person to fill out a “Petition and Order for Restoration of Firearm Rights,” which dictates the adjudicated offender’s citizenship rights have been restored for twenty years prior to submission.[13]  The Act now provides a solution to these problems allowing for an expungement of multiple misdemeanors after a seven-year period with no other convictions and does not preclude a felony expungement if an individual has prior misdemeanor convictions.[14]  While the Act does not necessarily expand the category of people eligible to eventually obtain full firearm rights, it can expedite the process for those individuals by ten years.[15]

North Carolina concealed carry permits are heavily regulated for any person attempting to carry a protective firearm, and a citizen seeking a permit must endure an arduous application process.[16]  North Carolina’s concealed carry law requires a person twenty-one years or older to participate in a gun safety course that “involves actual firing of handguns and instruction in the laws of this State governing the carrying of a concealed handgun and the use of deadly force.”[17]  If the applicant has previously been adjudicated of a felony in any court, the applicant may not immediately have their firearm rights restored.[18]  As previously stated, adjudicated offenders only have two avenues of relief: either wait the twenty year period required by G.S. 14–415.4, or obtain an expungement.[19]  The twenty year time-frame is wholly inconsistent with the stated mission of NCDPS to create “productive citizens” with “responsible behavior.”[20]  Theoretically, if NCPDS properly fulfilled its duty, the adjudicated offender should be capable of productive participation in society with no restrictions on their liberty.[21]  To be clear, the petition for firearm restoration under G.S. 14–415.4 only applies to non-violent offenders,[22] which makes the twenty-year waiting period appear arbitrary and borderline violative of North Carolina citizens’ fundamental rights. 

Firearm rights are civil rights.  The Second Amendment to the United States Constitution states that “the right of the people to keep and bear arms, shall not be infringed.”[23]  Although the clause “shall not be infringed”[24] appears to set an explicitly clear bar on any type of encroachment, that issue is one for another day.  The important thing to recognize is that North Carolina’s legislature took a step toward opening gun rights to all citizens, and the Act should be celebrated as a noteworthy piece of bipartisan legislation.

[1] Julia Manchester, 64 Percent View ‘Cancel Culture’ as a Threat to Freedom: Poll, The Hill (Mar. 29, 2021, 12:14 PM), https://thehill.com/homenews/campaign/545387-64-percent-say-they-view-cancel-culture-as-a-threat-to-their-freedom-poll?rl=1.

[2] Political Polarization in the American Public, Pew Research Ctr. (June 12, 2014), https://www.pewresearch.org/politics/2014/06/12/political-polarization-in-the-american-public/.

[3] The Second Chance Act (Senate Bill 562), N.C. Second Chance Alliance, https://ncsecondchance.org/thesecondchanceact/ (last visited Mar. 29, 2021).

[4] Division of Adult Correction, N.C. Dep’t of Pub. Safety, https://www.doc.state.nc.us/admin/mission_code.htm#:~:text=Mission%20Statement,to%20develop%20progressively%20responsible%20behavior (last visited Mar. 29, 2021).  

[5] Id.

[6] N.C. Gen. Stat. Ann. § 13-1 (2013); A Misdemeanant & Ex-Felon’s Guide to Voting in North Carolina, N.C. State Bd. of Elections, https://www.dconc.gov/home/showdocument?id=4102 (last visited Mar. 29, 2021).

[7] Petition and Order For Restoration of Firearm Rights, N.C. Jud. Branch, https://www.nccourts.gov/assets/documents/forms/cv654-en.pdf?4tqxbrLvOPWIB2i6xD3RzkMbHwwiM9Dl (last visited Mar. 29, 2021).

[8] See Second Chance Act, supra note 3.

[9] See id.; see also N.C. Gen. Stat. Ann. § 15A-145.5 (2020).

[10] N.C. Gen. Stat. Ann. § 15A-145.5 (c2).

[11] Petition and Order of Expunction Under G.S. 15A-145.5, N.C. Jud. Branch (rescinded December 1, 2020).

[12] Id.

[13] Petition and Order For Restoration of Firearm Rights, supra note 7.

[14] Petition and Order of Expunction Under G.S. 15A-145.5, N.C. Jud. Branch, https://www.nccourts.gov/assets/documents/forms/cr281_2.pdf?TwO2O8Q1sv2gWYGLpi6Ocp9q_ko6PXDr (last visited Mar. 29, 2021).

[15] Compare waiting period between Petition and Order For Restoration of Firearm Rights, supra note 7 and Petition and Order of Expunction Under G.S. 15A-145.5, supra note 11.  

[16] N.C. Gen. Stat. Ann. § 14-415.12 (2015).

[17] Id. at (a)(4). 

[18] Id. at (b)(3).

[19] Petition and Order For Restoration of Firearm Rights, supra note 7.

[20] Division of Adult Correction, supra note 4.   

[21] Id.

[22] Petition and Order For Restoration of Firearm Rights, supra note 7.

[23] U.S. Const. amend. II.

[24] Id.

By Blake Stafford

On February 4, 2016, the Fourth Circuit issued its published opinion in Kolbe v. Hogan, a civil case challenging the constitutionality of Maryland’s Firearm Safety Act (“FSA”).  The FSA criminalizes the possession, sale, and transport of certain semi-automatic guns and narrows the scope of detachable magazines that may be manufactured or sold.  Using intermediate scrutiny in its evaluation of the FSA, the district court held that the FSA restrictions were valid under the Second Amendment.  In a 2–1 decision, the Fourth Circuit vacated the judgment and remanded the case back to the district court, holding that strict scrutiny is the appropriate standard for the Second Amendment challenges.

Facts & Procedural History

In April 2013, Maryland passed the FSA, which bans certain firearms effective October 1, 2013.  The first challenged provision criminalizes the possession, sale, purchase, transfer, or transport of any firearm designated as an “assault weapon,” including the popular AR-15 and AK-47 semi-automatic rifles.  Md. Code, Crim. Law § 4–303(a).  The second challenged provision criminalizes the manufacture, sale, purchase, or transfer of detachable magazines with a capacity of more than ten rounds of ammunition for a firearm.  Md. Code, Crim. Law § 4–305(b).  The FSA contains a grandfather clause allowing those in lawful possession of prohibited firearms or magazines prior to October 1, 2013, to continue such possession.  Md. Code, Crim. Law § 4–303(b)(3)(i).  The FSA also contains exceptions for several classes of individuals, including active law enforcement officers, licensed firearms dealers, and retired state or local law enforcement agents who received the prohibited firearm or magazine prior to or upon retirement.  Md. Code, Crim. Law § 4–302(7)(i), (ii).

Just before the FSA bans became effective, the FSA was challenged on several constitutional grounds by two individual residents in Maryland; two businesses that operate in the firearms, hunting, and sport shooting industries; and several trade, hunting and gun-owners’ rights organizations (collectively “Plaintiffs”).  Plaintiffs sought declaratory and injunctive relief, arguing (1) that the firearm and magazine abridged their rights under the Second Amendment; (2) that the exemption for retired law enforcement officers violated the Equal Protection Clause of the Fourteenth Amendment; and (3) that certain provisions were unconstitutionally vague under the Due Process Clause of the Fourteenth Amendment.

The district court granted summary judgment to the State on all three grounds.  First, the district court determined that intermediate scrutiny applied to the Second Amendment claims, and concluded that Maryland’s firearm and magazine bans met the applicable standards and were thus valid under the Second Amendment.  Second, the district court held that retired officers “are differently situated” than ordinary citizens who wish to obtain assault rifles; thus, there is no Equal Protection violation.  Third, the district court concluded that the bans set forth “an identifiable core of prohibited conduct” and were thus not unconstitutionally vague.

Second Amendment

The Fourth Circuit applies a two-part approach to Second Amendment claims.  The first step is to determine whether the challenged law imposes a burden on conduct falling within the scope of the Second Amendment’s guarantee.  That is, the challenged law must implicate some degree of Second Amendment protection.  If it does not, the challenged law is valid.  If it does, then the second step is to apply the appropriate form of ends-means scrutiny.

Second Amendment Applies.  The first inquiry—whether the Second Amendment is implicated by the law—requires a determination of whether the prohibited firearms are “commonly possessed by law-abiding citizens for lawful purposes.”  First, the Court found that law-abiding citizens commonly possess the prohibited firearms.  Between 1990 and 2012, more than 8 million AR- and AK-platform semi-automatic rifles alone were manufactured in or imported into the United States.  Likewise, the Court found that the prohibited magazines are commonly kept by American citizens, as there are more than 75 million such magazines in circulation in the United States.  Second, the Court found that the common possession by law-abiding citizens was for a lawful purpose.  The record evidence showed that self-defense was a primary reason for the purchase of weapons banned under the FSA and that self-defense was a suitable purpose for semi-automatic rifles.  Moreover, the Court found nothing in the record demonstrating that law-abiding citizens have been historically prohibited from possessing the prohibited firearms and magazines.  Thus, the Court held that the prohibited weapons are commonly used for lawful purposes as required for Second Amendment protection.

Strict Scrutiny Applies.  Next, the Court determined the appropriate level of scrutiny by considering “the nature of the conduct being regulated and the degree to which the challenged law burdens the right.”  First, the Court found that the challenged provisions of the FSA implicate the core of the Second Amendment: the right of law-abiding, responsible citizens to use arms in defense of hearth and home.  Second, the Court found that the challenged provisions substantially burden this right by imposing a complete ban on the possession of these weapons.  The Court noted that the availability of other, legal weapons did not mitigate this finding.  Thus, the Court held that strict scrutiny is the appropriate level of scrutiny to apply to the bans of semi-automatic rifles and magazines holding more than 10 rounds.

Equal Protection Clause

A different majority of the 3-judge panel held that retired police officers are not similarly situated with the public at large for purposes of the FSA; thus, granting those officers certain rights under the FSA does not violate the Equal Protection Clause.  To succeed on an equal protection claim, a plaintiff must first demonstrate that he has been treated differently from others with whom he is similarly situated.  In this case, the Court provided a number of dissimilarities between retired police officers and the public at large.  First, retired police officers possess a unique combination of training and experience related to firearms.  Second, because they are granted a special degree of trust, police officers are instilled with an unusual ethos of public service.  Third, retired police officers face special threats that private citizens do not, with the most obvious being criminals whom they have arrested.  Fourth, retired police officers would also be more likely use their firearms in ways consistent with the public’s interests, not simply private ones.  Thus, the Court held that retired police officers and the public are not similarly situated, and dissimilar treatment of these dissimilar groups does not violate the Equal Protection Clause.

Vagueness: Due Process Clause

The final challenge by Plaintiffs was a vagueness claim under the Due Process Clause of the Fourteenth Amendment.  The FSA prohibits possession of “assault long guns,” which are defined by reference to the list of specific “assault weapons or their copies.”  The statute does not define the term “copies,” and there is no state regulatory definition.  The Court found that the plain meaning of the word—“something that is or looks exactly or almost exactly like something else: a version of something that is identical or almost identical to the original”—is not beyond the grasp of an ordinary citizen.  A statute need only have a “legitimate sweep,” that identifies a “core” of prohibited conduct to avoid unconstitutional vagueness, and the Court held that the challenged provisions sufficiently demarcated a core of prohibited conduct to survive vagueness review.


In sum, the Fourth Circuit (1) vacated the district court’s summary judgment order on Plaintiffs’ Second Amendment claims and remands for the district court to apply strict scrutiny; (2) affirmed the district court’s order on Plaintiffs’ Equal Protection claim with respect to the FSA’s exception permitting retired law enforcement officers to possess semi-automatic rifles; and (3) affirmed the district court’s conclusion that the FSA is not unconstitutionally vague.


Two dissents were written, the first regarding the Second Amendment claim and the second regarding the Equal Protection claim.  For the Second Amendment claim, the dissent would hold that the FSA is subject to nothing more than intermediate scrutiny.  The dissent noted that no precedent of the Supreme Court or the Fourth Circuit compelled strict scrutiny, and found that intermediate scrutiny was appropriate in light of decisions of other courts of appeals.  For the Equal Protection claim, the dissent would remand for further analysis under rational basis review rather than solely focusing on whether the officers and the public are similarly situated.